Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070604.htm]

• Erickson v. Pardus, No. 06-7317 (6/4/2007)  Court of Appeals dismissed as improprly pleaded an inmate's section 1983 suit alleging an Eight Amendment violation for prison officials' termination of a treatment program for his liver condition that they had previously commenced. SCOTUS summarily reverses the dismissal as it unduly heightenend the pleading requirements of the Federal Rules of Civil Procedure

• Richard Cooey v. Collins, 2007 U.S. App. LEXIS 12623  (6th Cir. 6/1/2007) Rehearing en banc on lethal injection challenge denied over dissent.  The brief dissent from the order is authored by Judge Gilman, and it concludes with this sentence: "I believe that en banc review would have been appropriate in the present case to ensure that the law in this Circuit conforms with Supreme Court precedent and to prevent the judicial inefficiency of juggling repetitive, simultaneous, and contradictory litigation from death-sentenced prisoners."

• State v. Gary Black, 2007 Mo. LEXIS 81 (Mo. 5/29/2007)  Trial court erred in not permitting Black to go pro se

• State v. Donald Loftin, 2007 N.J. LEXIS 605 (NJ 06/05/2007) The facts at issue are essentially one of the jurors prejudged the case. Procedurally, this is a multi-layered ineffective assistance of counsel claim due to trial & appellate counsel’s performance. [more here]

As always thanks for reading. - k

Pending Executions
June
13  Christopher Emmett (VA)
13  Cathy Henderson (Texas)
15 Michael Lambert (Indiana)
20  Lionell Rodriguez (Texas)
21  Gilberto Reyes (Texas)
22  Calvin Shuler (S.C.)
26  Patrick Knight (Texas)
26  Jimmy Dale Bland (Oklahoma)

SCOTUS

• Uttecht v. Brown, No. 06-413 (6/4/2007) Under the AEDPA excusal of juror for cause under Witherspoon / Witt did not require the issueance of relief as the state court adjudication of the claim was not  was error to find that a juror was not substantially impaired in the performance of their duties.  More below

• Erickson v. Pardus, No. 06-7317 (6/4/2007)  Court of Appeals dismissed as improprly pleaded an inmate's section 1983 suit alleging an Eight Amendment violation for prison officials' termination of a treatment program for his liver condition that they had previously commenced. SCOTUS summarily reverses the dismissal as it unduly heightenend the pleading requirements of the Federal Rules of Civil Procedure

Week of  May 28, 2007 -- In Favor of Life or Liberty

• State v. Gary Black, 2007 Mo. LEXIS 81 (Mo. 5/29/2007)  Trial court erred in not permitting Black to go pro se.

Week of  May 28, 2007 -- In Favor of Death

• Richard Cooey v. Collins, 2007 U.S. App. LEXIS 12623  (6th Cir. 6/1/2007) Rehearing en banc on lethal injection challenge denied over dissent.  The brief dissent from the order is authored by Judge Gilman, and it concludes with this sentence: "I believe that en banc review would have been appropriate in the present case to ensure that the law in this Circuit conforms with Supreme Court precedent and to prevent the judicial inefficiency of juggling repetitive, simultaneous, and contradictory litigation from death-sentenced prisoners."

• James Dailey v. State, No. SC05-1512, SC06-576 (FL 5/31/2007) Post-conviction relief denied on claims relating to:1) ineffective assistance of counsel and prosecutorial misconduct; 2) Giglio/newly discovered evidence claims; and 3) Ring claims.

• Robert Preston v. State, 2007 WL 1556649 (FL 5/31/2007) Post-conviction relief denied on claims relating to: 1) newly discovered DNA evidence; 2) ineffective assistance of resentencing counsel; 3) cumulative error; 4) ineffective assistance of appellate counsel; and 5) competency to be executed.

(Advance Sheet for the Week of June 4, 2007)  In Favor of Life or Liberty

• State v. Donald Loftin, 2007 N.J. LEXIS 605 (NJ 06/05/2007) The facts at issue are essentially one of the jurors prejudged the case. Procedurally, this is a multi-layered ineffective assistance of counsel claim due to trial & appellate counsel’s performance. [more here]
  

(Advance Sheet for the Week of  June 4, 2007)  In Favor of Death

• Eric Nenno v. Quarterman,  2007 U.S. App. LEXIS 13146 (5th Cir 6/6/2007) COA denied on cliems relating to: "1. Whether a polygraph examiner's deliberate silence after he scored Nenno's polygraph -- a tactic he knew was likely to evoke an incriminating statement from an accused who had just taken a polygraph -- amounted to a "subtle form of psychological persuasion," n1 which overcame Nenno's reluctance to admit involvement in the capital murder and made his confessions thereafter involuntary;" and   "2. Whether the Constitution requires that the states provide condemned prisoners with counsel who provide effective assistance in state habeas proceedings?"

• Michael Taylor v. Crawford, 2007 U.S. App. LEXIS 12851 (8th Cir. 6/4/2007) "Mr. Taylor has not adduced evidence at any stage of this litigation that carries his burden of proving a constitutional violation. We have very carefully examined the entire record, and we find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an Eighth Amendment violation or that any state actor was deliberately indifferent to the Constitution’s requirement that no unnecessary pain be wantonly inflicted during the execution process."
  

• Bell v. State, No. SC02-1765 (FL 6/7/2007) From Findlaw: "Denial of defendant's motion to vacate his two convictions of first-degree murder and two sentences of death and a petition for a writ of habeas corpus is affirmed and denied, respectively, over procedurally barred claims and claims that: 1) trial counsel was ineffective for numerous reasons; 2) there was cumulative error; 3) appellate counsel was ineffective for various reasons; 4) petitioner's death sentence is unconstitutional under Apprendi; and 5) the trial court gave unconstitutional jury instructions."

• Comm. v. Dewitt Crawley, 2007 Pa. LEXIS 1193 (PA 5/31/2007) PCRA appeal denied  as Crawley failed to "establish that he was mentally retarded by a preponderance of the evidence" and his request for the state supreme court to revise its prior holdings on teh appropriate standard for Atkins relief is denied.

• Comm. v. Derrick Ragan, 2007 Pa. LEXIS 1191 (PA 5/31/2007) . PCRA petition denied as newly discovered evidence held meritless.
  

• State v. Roger Todd,  2007 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App 5/31/2007) "Roger Todd, appeals from a trial court order denying funding for his psychological expert. After a thorough review of the record and applicable law, we conclude that Tennessee Rule of Appellate Procedure 3(b) does not provide a proper mechanism by which this Court may address an appeal of an order denying expert funding. Accordingly, the Defendant's appeal is dismissed."
  

• Teresa Lewis v. Warden, 2007 Va. LEXIS 95 (VA 6/8/2007) "The issues addressed by the Supreme Court of Virginia involve trial counsel's conduct related to their decisions concerning the investigation and presentation of mitigation evidence for Lewis' sentencing hearing, and their advice to Lewis that she plead guilty. Upon review of the evidence in mitigation and aggravation of the offenses, the Supreme Court concludes that Lewis failed to demonstrate that her defense was prejudiced by trial counsel's failure to investigate and present the available mitigation evidence introduced at the habeas hearing. The Supreme Court further holds that the record does not demonstrate that, but for trial counsel's alleged failures, there is a reasonable probability that the result of the proceedings would have been different." [from the Synopses of Opinions of the  Executive Secretary, Judicial Planning Department, Supreme Court of Virginia]
  

• Ricky Gray v. Comm, 2007 Va. LEXIS 94 (VA 6/8/2007)  Relief denied on "the following issues: (1) the sentences of death were imposed under the influence of passion, prejudice, and other arbitrary factors; (2) the sentences of death are excessive or disproportionate to the penalty imposed in similar cases; (3) the circuit court erred by failing to declare Code § 18.2-31(12) unconstitutional as violating his right to equal protection under the law; and (4) the Virginia death penalty statutes otherwise violate the Virginia and United States Constitutions. Gray's first two assignments of error tracked nearly verbatim the mandatory review of a sentence of death required by Code § 17.1-313(C). The Supreme Court conducted the mandatory review and found no error." [from the Synopses of Opinions of the  Executive Secretary, Judicial Planning Department, Supreme Court of Virginia]

• Denard Manns v. Quarterman, 2007 U.S. App. LEXIS 12923 (5th Cir 6/4/23007) (unpublished)  Relief deneid on claims relating to who bares the burden on the mitigation special question under both Penry II and Apprendi / Ring,  as well as the trial court erred in not requiring the jury to unanimously agree whether the offense elevating murder to capital murder was robbery, kidnapping, or aggravated sexual assault and "appellate counsel provided constitutionally deficient assistance by failing to raise on direct appeal the issue of the lack of juror unanimity as to which enumerated offense elevated murder to capital murder."  Oddly this is an unpublished opinion yet drew a "specially concurring" opinion from Judge Emilio Garza on the "uror unanimity as to which enumerated offense" issue.

Selected Excerpts from, & Commentary on, this Edition's Cases
[Note formatting may be off below this point.]

SMALL PRINT
SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year.

1997-2007 COPYRIGHT / DISCLAIMER / FAIR USE NOTICE: In plain English, you can use these materials without attribution (although I would appreciate the attribution) for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc.) save those works created by others contained in this newsletter identified above; you can't use the intellectual property of others contained herein because under federal law I simply can't give away the rights of others to their intellectual property. Any derivative works must provide at least as equal or greater waiver of intellectual property rights. The legalese, copyright, disclaimers, notices, & terms of usage are available in full at http://capitaldefenseweekly.com/blog/about/.  Where in conflict with the plain English version of this disclaimer / copyright notice, the terms at http://capitaldefenseweekly.com/blog/about/ control.

ADDITIONAL DISCLAIMER: In plain English, due your own due diligence. Legalese: Use does not constitute establishment of attorney-client relationship. On a semi-regular basis cases in which I have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent my attempt to show what a given Court held, not whether a particular court reached the right decision. The views expressed herein do not reflect the views of my employer or indeed my views as counsel on the merits in any matter in which I have participated (which normally would be either "my client got shafted" or "the court made the correct decision"). The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Note we purposefully do not use Blue Book, or any other traditional, citation form. Karl is dyslexic so please accept apologies in advance for the typos.

*Execution information derived from Rick Halperin, DPIC & media accounts
**Indicates prior involvement to one degree or another.
***Wendy Peoples, I am told, is  responsible for "Week-at-a-Glance."